Abandonment of Employment: wish you were here…

When an employee leaves work in dramatic fashion, it is important (from both a legal and practical perspective) to try and clarify the employee's intentions, so you all know where you stand.

What should you do when your employee is missing in action? How do you handle the employee who just doesn’t turn up? Has your employee abandoned employment?

This seems to happen more often than you would expect – and in some industries, it is not at all uncommon. There are at least two potential legal issues here:

The first is the possibility that the employee has abandoned employment and you don’t know where the employee is (in military parlance, MIA).

The second is that the employee fully intends to return to work, but has taken unauthorised leave (has gone AWOL).

While the practical consequences may potentially be the same (i.e. the employee ends up with no job) the legal situation and the process is a bit different in each case.

Abandonment occurs when employees abandon the job – in other words, they walk away from the job, with no intention of returning. In some situations this can be clearer than in others – for example, an employee may clear out his desk, throw around a few expletives, and slam the door on his way out. Other times, an employee simply doesn’t turn up, and no-one knows where he is.

Abandonment does not include a situation where an employer knows where an employee is or why the employee is not at work, regardless of whether that absence is authorised or not.

When an employee leaves work in dramatic fashion, it is important (from both a legal and practical perspective) to try and clarify the employee’s intentions, so you all know where you stand. However, you do need to tread with caution. If the drama is the result of a work altercation, particularly with a supervisor or manager, pushing the employee for a clear and concise explanation at the time may inadvertently result in a constructive dismissal. Do they just need some ‘cooling off’ time? Quite possibly, so leaving some time before finding out if the employee is resigning, and if so, whether the employee intends to give notice, would be prudent. If an employee makes it clear that she is resigning, but no notice is given, does she understand that she will be breaching her employment agreement by not giving notice? Does the employee understand she will not be paid beyond the last day of work?

If the employee makes it clear that she is resigning, at least you all know where you stand. If the employee was just venting some steam, then again, at least intentions are clarified (although there may be consequences for any diva-like behaviour in the workplace).

If, on the other hand, an employee simply hasn’t turned up, as an employer, you may be in a bit of a quandary. Don’t jump to conclusions. Despite what the employment agreement might say about employment being abandoned after some days, you cannot just sit on your hands and wait for the stated time to elapse. Rather, you must try and contact the employee by whatever means possible – call the employee’s mobile and home phone, leave messages, text, email, contact a next of kin, or even visit the employee’s home address (if practicable).

If the employee can’t be contacted over a period of several days, it would be appropriate to courier or deliver a letter to the employee’s home address, setting out your concern that he may have abandoned employment, and asking him to make contact urgently by a particular date or it may be concluded that the employee has abandoned employment. If he still hasn’t made contact by the stated date, and investigations have failed to locate him, you can then send a letter confirming that the employee has been treated as abandoning employment, and referencing the abandonment clause in the employment agreement. He should be paid any final pay (including holiday pay) owing, and the letter should confirm this.

If you do manage to make contact with an errant employee (before the abandonment axe drops) or the employee just turns up to work after several days of no contact, this is not an abandonment situation. Rather, you have a situation where the employee has potentially committed misconduct by taking unauthorised leave. This should be handled in the same way as any other suspected misconduct – putting the allegations and evidence/information to the employee, advising of the possible consequences, inviting the employee to respond to the allegations in a formal disciplinary meeting, considering the response, and reaching a conclusion on whether the employee has indeed taken unauthorised leave, and whether this amounts to misconduct or serious misconduct in all the particular circumstances. The next step is to advise the employee that you need to consider the appropriate sanction (e.g. dismissal or a formal warning), give the employee an opportunity to comment on this, and make a decision.

As with any disciplinary action, the question is whether the employer’s action, and how the employer acted, was what a fair and reasonable employer could have done in all the circumstances. The ‘seriousness’ of a failure to turn up to work will vary, depending on many factors – whether this is the first time, the company culture, the employee’s reasons for not showing, the company’s procedures for notifying absence, and so on. There is no ‘one size fits all’.

If you are in any doubt about whether your employee is MIA, AWOL (or just being a P in the A!), feel free to give us a call for clarification and advice.

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Building and Construction Law Journal

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